Journal Article

Adult Children and Elderly Parents in Strasbourg Proceedings: A Misconstrued Approach to ‘Family Life’

Carmen Draghici

in International Journal of Law, Policy and the Family

Volume 32, issue 1, pages 42-62
Published in print April 2018 | ISSN: 1360-9939
Published online January 2018 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/ebx018
Adult Children and Elderly Parents in Strasbourg Proceedings: A Misconstrued Approach to ‘Family Life’

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Abstract

This article criticizes the exclusion of the relationship between parents and adult children from the purview of Article 8 of European Convention on Human Rights in Strasbourg judgments, save for exceptional cases of dependency, narrowly defined (in practice reduced to disability). The author notes that this restrictive approach has been developed in the politically sensitive area of immigration policy and might stem from judicial pragmatism. She supports a more inclusive interpretation of ‘family life’, on two grounds. First, it would align the Court’s stance on adult relatives with its well-established purposive reading of the notion of ‘family life’. In fact, family arrangements between adult relatives usually continue to exhibit the ‘signposts’ of family life identified in landmark decisions: genetic filiation, emotional bonds, and effective ties; moreover, in cases without a cross-border element, the Court has recognized the applicability of Article 8 to close bonds with near relatives, such as grandparents. Secondly, bringing adult relatives within the scope of Article 8 would avoid the gap between the legal interpretation of ‘family life’ and the sociological understanding of the family as a group defined by a shared identity, caring, economic cooperation (including financial support, domestic labour, childcare, and elderly care), sometimes co-residence. Whilst the Court may accommodate legitimate state interests when assessing the merits of a complaint, the failure to acknowledge the relationship between parents and adult children as ‘family life’ at the admissibility stage does not reflect social reality and prevents any judicial scrutiny over measures interfering with the normal development of such relationships.

Journal Article.  10871 words. 

Subjects: Family Law ; Law and Society ; Politics and Law ; Marriage and the Family

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